It is no secret: America's workforce is aging. The increase in older people working has been followed by an increase in age discrimination. Employers have shown a bias against people 40 years or older. Fortunately, workers in California and throughout the United States are protected against age discrimination. Federal legislation prohibits it, but most states also have their own statutes addressing it. Unfortunately, proving age discrimination can be difficult.
At Lowry Law Firm, our employment law lawyer based in Los Angeles County is dedicated to helping clients who have experienced age discrimination. Through fact-finding, discovery, strategic pleadings, and negotiations, our employment law attorney succeeds where others may fail. If you think an employer has discriminated against you based on your age, contact us at (818) 797-4321 to schedule a free consultation and to learn more about any legal options available to you.
What Constitutes Age Discrimination?
Age discrimination occurs when a person receives unfair treatment due to their age as an employee or as a job applicant. The California Fair Employment and Housing Act is a law designed to protect persons who are 40 years of age or older. The employer or person acting on behalf of the employer (e.g., a supervisor, manager, or human resources personnel) can in some instances be 40 years old or older, too. What matters is that the victim is 40 years old or older and has suffered discrimination based on the latter fact.
Are all Employers Subject to the California Fair Employment and Housing Act?
Most employers are subject to the California Fair Employment and Housing Act, including:
- Any person, including a company, that regularly employs 5 or more employees
- A person acting as an agent of an employer, whether directly or indirectly
- The State of California
- Any political or civil subdivision of the State of California
- A city
Note, however, that under the California Fair Employment and Housing Act, “employer” does not include a religious association or corporation not organized for private profit. It can sometimes be difficult to determine whether a company is a religious association or a corporation not organized for private profit. An experience employment lawyer such as Kent Lowry can help determine whether such a company is subject to the California Fair Employment and Housing Act.
What If a Younger Worker is Discriminated Based on their Age?
The California Fair Employment and Housing Act protects only workers who are 40 years of age or older.
Examples of Age Discrimination in California
Age discrimination can take different forms. Sometimes the discrimination is overt, while other times it is disguised as something else. Following are some examples of age discrimination.
Comments, Jokes, or Insults Regarding Age
Management and co-workers may demean older workers when they make age-related comments, like “Ok, Boomer!” These types of comments, if consistent and regular, can create a hostile work environment that could be considered harassment.
“Ok, Boomer!” however, is not enough on its own to constitute a claim for age discrimination. An employer is liable for age discrimination in violation of the California Fair Employment and Housing Act only if it refuses to hire or employ the person based on the person's age; refuses to select the person for a training program leading to employment; based on the person's age; bars or discharges the person from employment or from a training program leading to employment because of the person's age; or otherwise discriminates against the person in compensation or in terms, conditions, or privileges of employment because of the person's age.
Loss of Promotion Due to Age
Often what happens when age discrimination is at play is a younger, less qualified employer will get a promotion. Meanwhile, the more qualified but older employer is passed over for the promotion.
Hiring Only Younger Workers
Age discrimination can occur even during the hiring process. When a company has a record of hiring only young employees, it may be evidence of discrimination.
Employers discourage employees from discussing their salaries, but word gets around, especially when certain people are getting raises or promotions and others are not. If you have a coworker in the same role as you with similar experience but who is paid more, it could indicate discrimination. Look to see what your coworker's age, race, religion, or gender is compared to your own.
Unjust Disciplinary Action
Unfair criticism or discipline (like demotion or pay cuts) may indicate a supervisor is trying to create a paper trail to disguise any age-based discrimination.
Advertising Specifically Geared for Younger Workers
Companies cannot use advertisements to discriminate. Advertisements must be free from a preference for younger employees or an avoidance of older employees.
How Do You Prove Age Discrimination in California?
As mentioned, proving age discrimination can be a daunting task, but it is achievable. To have a prima facie case of age discrimination under the California Fair Employment and Housing Act, an employee prove each of the following:
- The existence of an employment or other covered relationship, or that they applied for a job with a covered employer
- That they are 40 years old or older
- That they were not hired, or were fired, or were subjected to some other adverse employment action
- That their age was a substantial motivating reason for the employer's refusal to hire, decision to fire, or decision to take the adverse employment action
- That they have suffered harm, and
- That the employer's conduct was a substantial factor in causing the harm.
But proving the case does not end by satisfying these six elements. Employers often challenge any legal action and offer affirmative defenses to try to escape liability. For example, employers may claim there was a bona fide occupational reason or a legitimate, non-discriminatory reason for their decision. Public and employee safety, a bad economy necessitating a reduction in the work force, the requirements of the job, and other reasons are often proffered by employers as reasons for their actions. If those reasons are deemed by a judge to be legitimate on their face, the employee must then prove that the employer's proffered reason is simply a pretext and that age discrimination remains the real reason.
Proving age discrimination can also be found in patterns. If an employer has a pattern of hiring only younger people, promoting only younger people, and making jokes about older people, then this can be used to help prove your case. Often, these types of cases can require considerable discovery and witness testimony.
What Should Employers in California Do to Prevent Age Discrimination?
Employers must take precautionary measures to prevent age discrimination. Violations of age discrimination laws can lead to fines and lawsuits. An employer can be ordered to pay lost wages and other types of compensation and may be required to reinstate or promote the worker.
Some of the policies and procedures that can be put into place are described below.
All employees, even those in positions of leadership, can benefit from training on what age-based discrimination is and how to avoid it. Without this type of training, employees may participate in age-based discrimination and not even be aware of what they are doing. Proper training should include examples of age-based discrimination and alternative ways to approach situations.
It is important, also, that employees learn how to work with people from different backgrounds, including different races and religions along with different ages.
Performance-Based Reward System
Employee rewards should be based on the actual work of employees and in a way that is able to be easily measured. When rewards are determined based on arbitrary measures, it is easy for there to be discrimination, even if it is unintentional. Also, if an employer is accused of age discrimination, being able to show that the rewards are based on an actual, measurable performance-based system will help to show that they are not being discriminatory.
Review and Implement Policies to Avoid Age Discrimination at All Stages
Employers should implement policies that serve as a way to ensure discrimination does not occur. These policies should address all stages of employment, from advertising for employees to lay-offs. This policy should be clearly explained. Penalties should be established for policy violations.
Examples of policies employers can implement include:
- Remove employee date of births from any documentation where it is not required
- Hold all employees to the same standards and punish all in the same way
- If forced to lay off employees, do not base termination on employee age
- Provide training on an annual basis
- Make it clear that employees can report any discrimination without fear of retaliation
- Create mentorship programs for new employees and those with tenure to build bonds and promote mutual respect
There may be other state-specific precautions that employers should consider.
What Should Employees in California Do if Discriminated Against Based on Age?
Employees who have been discriminated against often feel embarrassed and angry, with good reason. But they are not without recourse. The following actions can help victims protect their rights.
- Keep a record. Employees who have been harassed or discriminated against should keep detailed records of the misconduct, including where and when it happened; a description of what was done or said; the name (or names) of the abuser(s); and the name (or names) of witnesses. Detailed notes are important. Potential evidence, such as emails, text messages, social media posts, photographs, and other evidence of the misconduct, should be preserved. If litigation occurs in the future, it is helpful to have the notes to jog memories and evidence to support the claims made.
- Report the discrimination internally. Employees should immediately follow the guidelines in their employee handbook for reporting harassment and discrimination. California employers have a legal obligation to take prompt, appropriate corrective action to stop harassment and discrimination, even while they investigate the allegations, and a further obligation to conduct an investigation. Note, however, that some employers--surprisingly--may violate the law by ignoring complaints of harassment and discrimination and, further, by retaliating against an employee who has reported harassment or discrimination, even if the employer's handbook states that the employer does not to tolerate harassment and discrimination in the workplace; encourages reporting; and states that all complaints will be taken seriously. If an employee doesn't report harassment or discrimination, however, and it continues, then the employer will likely blame the employee for not giving the employer a chance to stop the harassment or discrimination. In sum, reporting harassment and discrimination carries a risk, but so does not reporting it. Employees may wish to speak with an attorney even before reporting harassment or discrimination for advice on what to include in a complaint and what to expect from the employer in response.
- Consider telling someone the employee trusts inside and outside the workplace. If an employee who is the victim of harassment or discrimination ends up having to file a lawsuit, the employer's attorneys may seek to take a deposition from the employee's spouse, domestic partner, or significant other; the employee's roommates; the employee's best friend; the employee's co-workers; the employee's doctor; the employee's therapist; the employee's spiritual advisor; and other people close to the employee. The defense attorneys do this looking for complaints made as things happened. If they find nothing, they will likely argue that the harassment or discrimination didn't happen.
- Be a model employee. Some employers may retaliate immediately against an employee who has reported harassment and discrimination. If they do, the employee's case will be even stronger. Other employers may watch the complaining employee closely to see if they violate any workplace rules or guidelines in order to find a "legitimate" reason to fire or discipline the complaining employee. Once an employee decides to report harassment or discrimination internally, the employee needs to be a model employee.
- Speak to an attorney. If reporting the harassment or discrimination does not resolve the issue, the employee should speak with an attorney who handles harassment and discrimination claims.
In harassment and discrimination cases, time is of the essence. There are limits on how long an employee has to file a complaint for harassment. Determining when the clock starts ticking can be tricky. Further, you may have to file a claim with a government agency, such as the California Civil Rights Department, before you can file a lawsuit. You should consult a lawyer who handles harassment and discrimination claims to ensure all the necessary steps have been taken to preserve your legal rights.
Contact an Employment Law Attorney in Los Angeles County Today
Age discrimination in the workplace is real and causes harm both to the victim and society. Making sure you are compensated fully and fairly for the harm is our job. At Lowry Law Firm, attorney Kent Lowry handles these tough cases because he cares about our communities and hisclients. Contact Kent today by using our online form or calling us at (818) 797-4321 to schedule a free consultation.